Steve Ward Services (UK) Ltd v Davies & Davies Associates Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Arnold,Lord Justice Moylan |
| Judgment Date | 14 February 2022 |
| Neutral Citation | [2022] EWCA Civ 153 |
| Docket Number | Case No: A1/2021/1454 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 153
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
MR ROGER TER HAAR QC (Sitting as Deputy High Court Judge)
[201] EWHC 1337 (TCC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lord Justice Coulson
and
Lord Justice Arnold
Case No: A1/2021/1454
James Bowling (instructed by Costigan King) for the Appellant
Nigel Davies appeared in person for the Respondent
Hearing Date: 25 January 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to BAILII and the National Archives. The date and time for hand-down is deemed to be 10.30am on 14 February 2022
INTRODUCTION AND PRELIMINARY PROCEDURAL MATTERS
The principal issue raised by this appeal concerns the entitlement of an adjudicator to his or her fees, in circumstances where they have resigned from the Referral because they did not consider that they had the necessary jurisdiction to decide the dispute. There is very limited authority on that point, and it has been 8 years since this court last considered an adjudicator's entitlement to fees in circumstances where the Referral did not go as anticipated.
Sitting as a deputy high court judge, Mr Roger Ter Haar QC (“the judge”) concluded that the adjudicator was entitled to recover his fees of £4,290 plus VAT and interest because he acted honestly and diligently and not in bad faith, and because that was the effect of his terms of appointment, which did not fall foul of the Unfair Contract Terms Act 1977 (“ UCTA”). There is no dispute that, under those terms, the claiming party in the adjudication, Steve Ward Services (UK) Limited (“SWS”), was jointly and severally liable to pay any fees found due. That explains their presence in these proceedings as the defendant/appellant.
SWS now seek to appeal against the judge's principal conclusions. The adjudicator, Mr Davies (whose firm is the claimant in the proceedings and the respondent to this appeal) represented himself both before the judge and before this court. His Respondent's Notice seeks to challenge the one finding made against him by the judge, namely that his reasons for resignation were “erroneous” and that, in so acting, he went beyond his powers.
There were a number of preliminary procedural disputes. In particular, Mr Davies contended that, when the judge gave SWS permission to appeal, he did so on a limited basis and that certain issues now raised by Mr Bowling on behalf of SWS were not encompassed by the permission to appeal that the judge had granted. On behalf of SWS, Mr Bowling submitted that it was quite plain that the permission granted by the judge was not limited, and covered all the matters subsequently raised in his Appellant's Notice.
It is an unhappy fact of life that, when the judge below grants permission to appeal (rather than this court), there will often be a dispute about the scope of the appeal for which permission has been granted: see most recently TRW Ltd v Panasonic Industry Europe GmbH [2021] EWCA Civ 1558, at [75]. It is important that, in any order made by the first instance judge granting permission to appeal, the issues on which permission is being granted are expressly spelt out. That is even more important where, as here, there is a cross-appeal and one of the parties is, to all intents and purposes, a litigant in person.
That said, it is plain that the judge intended to grant SWS permission to appeal in respect of all the principal issues on which they had lost. Although it is right to say that, in his short judgment granting permission, the judge expressly referred only to the construction of the adjudication agreement and its application to the facts of this case, it is plain that he was not intending to limit the permission to just those points. If he was, he would have said so. Moreover, the order granting permission to appeal was not limited in any way. Accordingly, I deal below with all the issues raised in the skeleton arguments by both sides, without qualification.
In addition, there were separate disputes about the documents to which this court could have regard in deciding this appeal and cross-appeal. I ruled on 17 September 2021 that certain documents could not be relied on by Mr Davies, because they were not before the judge. But all the other disputed documents were before him, and were therefore properly admissible on the appeal. I note, however, that some of those documents went to support an entirely new argument, concerned with the construction of Mr Davies' terms of appointment, which Mr Bowling had not advanced before the judge or in his skeleton argument, and which he candidly admitted had occurred to him “last week”.
In Section 2 below, I set out the relevant facts, including the terms of the contract between SWS and Mr Davies. In Section 3, I identify the judge's main conclusions, and set out the six issues which arise on this appeal. Thereafter, in Sections 4 – 9, I address each of those issues by reference to the detailed findings of the judge, the relevant law and my analysis of the competing submissions. There is a short summary of my conclusions in Section 10. I regret that the numerous arguments raised by SWS in support of their defence to this modest claim for fees by Mr Davies have made this a longer judgment than I would have wished.
THE FACTS
The Background
In late 2019/early 2020, SWS carried out construction works at a restaurant called ‘Funky Brownz’ in Stanmore in Middlesex (“the property”). Although there was no concluded written contract governing these works, there was a proposed set of contract documents, drawn up in late 2019, on which, at various times, all sides have relied. They referred to “the Client” as Vaishali Patel and “The Contractor” as SWS. Pursuant to clause 1 of the proposed contract:
“The Client hereby agrees to engage the Contractor to provide the Client with the following services…”
Those services were described as “design, supply and build of Funky Brownz…internal decorations”.
At the end of the contract where the signature spaces were, the client was described as ‘Funky Brownz’ and its owner/proprietor was “Miss Vaishali Patel”.
There was no mention anywhere in the proposed contract of a company called Bhavishya Investment Limited (“BIL”). Their precise relationship with Ms Patel and with Funky Brownz is a little obscure although it appears that, at least in late 2019/early 2020, Ms Patel was a director and the majority shareholder in BIL. It was subsequently said that BIL owned the premises in Stanmore. In any event, invoices for the works were addressed by SWS to BIL and paid by BIL.
In 2020, SWS claimed an unpaid balance of £35,974.29 in respect of the works. There was a dispute about defects and then a dispute about access being granted to allow SWS to rectify any defects notified. The monies remained unpaid and a dispute arose. In April 2020, SWS served a Statutory Demand on BIL, but that was subsequently withdrawn.
In September 2020, SWS's solicitors, Costigan King, sought to commence adjudication proceedings against BIL in respect of the unpaid amount of £36,000 odd. Mr Davies was nominated to act as the adjudicator by the RICS and his terms of appointment were sent to both parties. Neither objected to those terms. However, BIL disputed that Mr Davies had the necessary jurisdiction, on the ground that the request for nomination had been made to the RICS before the notice of adjudication (“the Referral”) had been issued to BIL. In consequence of that technical objection, Mr Davies resigned as the adjudicator. Mr Davies sent an invoice for fees referrable to the time that he had spent on the adjudication prior to resignation. SWS paid without objection.
On 21 September 2020, Costigan King issued BIL with a second notice of adjudication. The Referral was in the same terms as before, and alleged a contract in writing between SWS and BIL. The following day, 22 September, Costigan King made a second request to the RICS for nomination of an adjudicator. On 23 September 2020, Mr Davies was again nominated by the RICS to act as adjudicator. Again, Mr Davies wrote to the parties, by post and by email on 23 September 2020, enclosing the same terms of appointment he had sent the week before. Again, there was no objection to them.
The Terms of Mr Davies' Appointment
Mr Davies' contract of appointment, for what should have been a simple and straightforward adjudication, was made up of four separate documents. They were: i) His letter of 23 September to the parties; ii) His own terms of appointment; iii) The CIC Low Value Dispute Model Adjudication Procedure (1 st Edition)(“the MAP”); and iv) The Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 649), as amended (“the Scheme”).
What was the position if Mr Davies' letter or his own terms and conditions differed from or contradicted the provisions of the MAP or the Scheme? It seemed to me that, in those circumstances, and subject to UCTA, Mr Davies' letter and his own terms and conditions would take precedence, because they were bespoke terms applicable to this particular adjudication, and so would prevail over the general provisions of the Scheme: for a recent example of the particular overriding the general as a matter of contract construction, see Towergate Financial (Group) Limited v Hopkinson [2020] EWHC 984 (Com), and the detailed discussion of this topic in the 7th edition of ‘The Interpretation of Contracts’ by Sir Kim Lewison, at 7.46–7.52. Mr Bowling accepted that...
To continue reading
Request your trial
-
Legal Developments In Construction Law: March 2022
...In all the circumstances of the case, he had reasonable cause to resign. Steve Ward Services (UK) Ltd v Davies & Davies Associates Ltd [2022] EWCA Civ 153 4. So when is an adjudicator who resigns, entitled to their In Steve Ward Services (UK) Ltd v Davies & Davies Associates Ltd, the Court ......